Attached files
EXHIBIT
10.3
2007-09-27
BIO-DIESEL
MARKETING CONTRACT
THIS
AGREEMENT is entered into by and among Eco-Energy Clean Diesel LLC. (hereinafter
"Eco") a Tennessee Corporation with its main office located at 725 Cool Springs
Blvd, Suite 500, Franklin. Tennessee 37067, and BIOFUEL ADVANCED RESEARCH AND
DEVELOPMENT LLC, (hereinafter BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC)
located with its main office at 7910 Lawnsdale Avenue, Philadelphia, PA
19111.
RECITALS:
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A.
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BIOFUEL
ADVANCED RESEARCH AND DEVELOPMENT LLC, who is developing a bio-diesel
plant facility producing 60 million gallons per year of bio-diesel located
in Philadelphia, Pennsylvania thai desires to establish an
output-marketing contract
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B.
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Eco
is a reseller of bio-dicsel and is experienced in the marketing and
transportation of such bio- diesel,
and is willing to agree to purchase the entire bio-diesel output of the
plant and any future increases
in production.
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NOW,
THEREFORE, IT IS AGREED AS FOLLOWS BETWEEN THE PARTIES:
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1.
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Eco Services. Eco
shall, during the term hereof, purchase the entire output of bio-dicsel
and to provide certain transportation services to BIOFUEL ADVANCED RESEARCH AND
DEVELOPMENT
LLC. (the "Eco Program"). The Eco services to be provided are set forth in
Sections 2 and 3 and the exhibits attached hereto which arc referred to
therein.
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2.
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Eco Take or Pay Bio-diesel Purchases.
BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. agrees to sell to Eco, and
Eco agrees to purchase from BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC.
100% of the production of bio-diesel during the term of the contract,
including production in excess of proposed production of 60 million
gallons per year. Each potential Eco purchase will be presented to the
BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. representative by Eco for
verbal approval. BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC shall
accept or reject such terms, including, but not limited to purchase price.
Upon such verbal approval and purchase, a confirmation of the purchase
contract will be submitted to BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT
LLC. by Eco. encompassing the details of each
purchase.
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3.
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Eco Transportation
Services. Eco agrees to provide the transportation services set
forth in Exhibit B.
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4.
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Fees. BIOFUEL
ADVANCED RESEARCH AND DEVELOPMENT LLC shall pay a fee for Eco services
and materials provided hereunder of 1.0% of the net purchase price per net
gallon for B-100 biodiescl and 1.5% of the net purchase price per net
gallon for B—99.9 biodiesel; with a $.015 cpg floor of bio-diesel
purchased by Eco during the term of the contract. Such lees shall be
payable monthly on actual gallons shipped from the prior month. Payment
from BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. shall be subtracted
from Eco's first weekly wire payment of the following month for bio-diesel
purchases
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5.
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BIOFUEL ADVANCED
RESEARCH AND DEVELOPMENT LLC.
Representative. BIOFUELADVANCED
RESEARCH AND DEVELOPMENT LLC shall designate one or more persons who shall
be
authorized and directed to receive services hereunder and to make all
merchandising, purchasing and sales
decisions for BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. All
directions, transactions
and authorizations given by such representative to Eco shall be binding
upon BIOFUEL ADVANCED
RESEARCH AND DEVELOPMENT LLC. Eco shall be entitled to rely on the authorization
of such persons until it receives written notification from
BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. thai such authorization has
been revoked. The terms of such purchase orders shall be consistent with
the provisions of Exhibit A and may include, but shall not necessarily be
limited to, price, volume, delivery schedule, and shipping
instructions.
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2007-09-27
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6.
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Eco
Limitations.
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(a)
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Eco
assumes no responsibility for the complet'on or performance of any
contracts between
BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. and BIOFUEL ADVANCED
RESEARCH AND DEVELOPMENT LLC. customers and suppliers, and BIOFUEL
ADVANCED RESEARCH AND DEVELOPMENT LLC. agrees
they shall not bring any action or make any claim against Eco based on any
act, omission or claim of any of BIOFUEL ADVANCED RESEARCH AND
DEVELOPMENT' LLC. customers or
supplier..
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(b)
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BIOFUEL
ADVANCED RESEARCH AND DEVELOPMENT LLC. is responsible to cover
all non-deliveries of any product that is contracted between Eco and
BIOFUEL ADVANCED
RESEARCH AND DEVELOPMENT LLC. in a timely manner in order to stay
within the time parameters of the contract. Eco will assist in procuring
product from other suppliers to cover these
non-deliveries.
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(c)
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If
any party terminates this agreement for any reason, both parties will be
responsible to complete
any existing
contracts.
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7.
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Separability
and Non-liability. The sendees, contracts and relationships between
BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. and Kco are independent and
separable.
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8.
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Confidentiality
Agreement, The parlies agree, to the extent pcrmitled by law, to
preserve and protect the confidentiality of the Agreement. Both parlies
recognize that federal or slate law may require the filing of the
Agreement with, or the furnishing of information to, governmental
authorities or regulatory agencies. Both parties further recognize the
need, from time to time, for the submission of the Agreement to
affiliates, consultants, or contractors performing work on, or relaied to.
the subject matter of the Agreement. Buyer and Seller agree to allow the
submission of the Agreement to affiliates, consultants, or contractors if
such affiliates, consultants, or contractors agree to protect the
confidentiality of the Agreement. In the event either party is of the
opinion that appli .able law requires it to file the Agreement with, or to
disclose information related lo the Agreement (other ihan information
required by laws and regulations in effect as of the date hereof to be
furnished in periodic reports to governmental authorities) to, any
judicial body, governmental authority or regulatory agency, that party
shall so notify the other party in writing prior to the disclosure or
filing of the
Agreement.
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9.
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Public
Disclosure. Any public announcements concerning the transaction
contemplated by this letter shall be approved in advance by Eco and
BIOFUEL ADVANCED Rl SEARCH AND DEVELOPMENT LLC, except For disclosures
required by law, in which case the disclosing party shall provide a copy
of the disclosure lo the other party prior lo its public
release.
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10.
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Solicitation.
BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. agrees not to contact or
interfere with, solicit, disrupt or attempt lo disrupt relationships,
contractual or otherwise, between Eco and any of its" customers, employees
or
vendors.
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11.
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Terms
and
Termination.
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(c)
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The
initial term of this Agreement shall commence on the first day of
bio-diesel production and shall continue for Five (5)
years. This contract will automatically renew for an additional
term of Five (5) years unless BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT
LLC. gives written notice at least six (6) months prior to the end of the
initial term,
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(b)
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This
agreement may be terminated by BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT
LLC. as to Eco in the event of material breach of any of the material
terms hereof bv such other party, by written notice specifying the breach,
which notice shall be effective fifteen (15) days after it is given unless
the receiving party cures the breach within such time. This agreement may
be terminated by Eco as to BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC.
in the event of material breach of any of the material terms hereof by
BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. by written notice
specifying the breach, which notice shall be effective fifteen (15) days
after it is given unless the receiving party cures the breach within such
time. Any material breach by BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT
LLC. as to Eco or by Eco as to BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT
LLC. that cannot be resolved within 15 days, both parlies may mutually
agree in writing to the length of time needed lo resolve the material
breach.
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(c)
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This
Agreement may also be terminated between either party by the mutual
consent of both parties on such terms as the parties may
agree.
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(c)
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In
addition to any other method of terminating this Agreement, Eco may
unilaterally terminate this Agreement at any time if such termination
shall be required by any regulatory authority, and such termination shall
be effective on the 30th
day following the giving of notice of intent to
terminate.
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12.
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Licenses, Bonds, and
insurance. Each party represents that it now has and will maintain
in full force and effect during the term of this Agreement, at its sole
cost, all necessary state and federal licenses, bonds and insurance in
accordance with applicable stale or federal laws and
regulations.
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13.
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Limitation of
Liability. EACH PARTY UNDERSTANDS THAT NO OTHER
PARTY MAKES ANY GUARANTEE, EXPRESS OR IMPLIED, TO ANY OTHER OF PROFIT, OR
OF ANY PARTICULAR ECONOMIC RESULTS FROM TRANSACTIONS HEREUNDER. IN NO
EVENT SHALL ANY PARTY BE LIABLE FOR SPECIAL, COLLATERAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES FOR ANY ACT OR OMISSION COMING WITHIN THE SCOPE OF
THIS AGREEMENT, OR FOR BREACH OF ANY OF THE PROVISIONS OF THIS
AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SUCH EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF GOOD
WILL, LOSS OF PROFITS, LOSS OF
USE AND INTERRUPTION OF
BUSINESS.
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14.
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Disclaimer
BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. understands and agrees that
Eco makes no warranty respecting legal or regulatory requirements and
risks. BIOFUEL ADVANCED RESEARCH
AND DEVELOPMENT LLC. shall obtain .such legal and regulatory advice from
third parties as it may deem necessary respecting the applicability of
legal and regulatory requirements applicable to BIOFUEL ADVANCED RESEARCH
AND DEVELOPMENT LLC.
business.
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15.
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Indemnity. The
Parties agree that they shall absolve, release and refrain from seeking
remedies against each other and their officers, agents, employees,
subcontractors and insurers for any and all losses, claims, damages,
costs, suits and liabilities for damage, deterioration of quality,
shrinkage in quantity, loss of grade or loss of Bio-diesel resulting from
the inherent nature of transfer operations and the inherent nature of
Bio-diesel provided that this in no way shall relieve the parties for
their own negligence, willful misconduct or theft. Each party to this
contract shall indemnify, defend and hold the other harmless from claims,
demands and causes of action asserted against the other by any person
(including without limitation employees of either party) for personal
injury or death, or for loss of or damage to property resulting from the
willful or negligent acts or omissions of the indemnifying parly, Whore
personal injury, death or loss of or damage to property is the result of
the joint negligence or misconduct or the Parlies hereto, the Parties
expressly agree to indemnify each other in proportion to their respective
share of such joint negligence or
misconduct.
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16.
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Nature of Relationship. Eco is an independent contractor
providing services to BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. No
employment relationship, partnership or joint venture is intended, nor
shall any such relationship be deemed created hereby. Each party shall be
solely and exclusively responsible for its own expenses and costs of
performance.
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17.
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Notices. Any
notices permitted or required hereunder shall be in writing, signed by an
officer duly authorized of the party giving such notice, and shall either
be hand delivered or mailed. If mailed, notice shall be sent by certified,
first class, return receipt requested, mail to the address shown above, or
any other address subsequently specified by notice from one party to the
other.
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18.
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Compliance With
Governmental Controls: To the extent applicable, the
parties agree to comply with all laws, ordinances, rules, codes,
regulations and lawful orders of any federal, state or local government
authority applicable to the performance of the Agreement, including,
without limitation, those pertaining to the environment, safety, health,
social security, old age pension, wage hour laws, unemployment
compensation, non-discrimination on the basis of race, religion, color,
sex or national origin and affirmative
action.
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19.
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New Or Changed
Regulations. The parties enter die Agreement in reliance upon the
laws, rules, regulations, interpretations, decrees, agreements, and
concessions of, and arrangements (hereafter called "Regulations") with
governments or governmental instrumentalities in effect on the date of the
Agreement with respect to or directly or indirectly affecting the
bio-dicsel to be delivered, including without limitation, production,
gathering, manufacturing, transportation, sale and delivery thereof
insofar as said Regulations affect Eco and their
customers. In the event that at any time subsequent to
the date of the Agreement, any of said Regulations are changed or new
Regulations are promulgated whether by law, decree, interpretation or
regulation, or by response to the insistence or request of any
governmental authority or person purporting to act therefore, and the
effect of such changed or new Regulation (a) is or will not be covered by
any other provisions of the Agreement, or (b) has or will have an adverse
economic effect upon the parties to this Agreement or the suppliers or
customers of said parties, the parties shall have the option to request
renegotiation of the prices and other pertinent terms provided for in the
Agreement and their respective effective dates. Said option may be
exercised by Eco at any time after such changed or new Regulation is
promulgated by giving notice of the exercise of its option to renegotiate
prior to the time of delivery of bio-diese) or any part thereof. Such
notice shall contain the new prices and terms desired by agreement of Eco
and BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC If the parties do not
agree upon new prices and terms satisfactory to both parties within ten
(10) days after such notice is given. Eco shall have the right to
terminate the Agreement at the end of said len (10) day
period.
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(a)
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This
agreement is the entire understanding of the parties concerning the
subject matter hereof, and it may be modified only in writing signed by
the parties.
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(b)
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If
any provision or provisions of this agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
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(c)
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No
party shall be liable for any failure to perform any or all of the
provisions of this agreement if and lo the extent that performance has
been delayed or prevented by reason of any cause beyond the reasonable
control of such party. The expression "cause beyond the reasonable
control" shall he deemed to include, bin not be limited to: acts,
regulations, laws, or restraints imposed by any governmental body; wars,
hostilities, sabotage, riots, or commotions; acts of God; or fires, frost,
storms, or lightning.
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(d)
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This
agreement is not intended lo, and does not, create or give rise to any
fiduciary duty on the part of any party to any
other.
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(e)
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No
action, regardless of its nature or form, arising from or in relation to
this Agreement may be brought by either party more than two (2)
years after the cause of action has arisen, or, in the case of an
action for nonpayment, more than two (2) years from the date the last
payment was due. Venue for any action arising from or in relation lo this
agreement shall be in Philadelphia. Pennsylvania.
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(f)
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This
agreement is governed by and shall be construed under the laws of the
State of Pennsylvania.
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(g)
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This
Agreement shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns. ECO shall remain
the marketer for the Philadelphia, Pennsylvania production facility, in
accordance with this Agreement and in the event of a sale, merger or
acquisition of BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. by a third
party.
However, ECO reserves the right to unilaterally terminate the
Agreement, due to the sale or merger of BIOFUEL ADVANCED RESEARCH AND
DEVELOPMENT LLC. to another company if it presents conflict of interest
for ECO and its' other projects and/or customers. ECO may assign its
rights and duties under this Agreement in connection with the sale,
merger, exchange or acquisition of all or substantially all of the assets
or stock of ECO and ECO may assign its rights and duties under this
Agreement to another company controlling, or controlled by, or under
common control with F CO, all without having to obtain the express written
consent of the other party.
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(h)
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This
agreement shall be binding upon BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT
LLC. and this above referenced plant in the event thai the BIOFUEL
ADVANCED RESEARCH AND DEVELOPMENT LLC. is later changed to any BIOFUEL
ADVANCED RESEARCH AND DEVELOPMENT LLC. in the alternative. A change in
BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. does not void, nor make
this contract
voidable.
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EXHIBIT A
Bio-Diesel
Echo
shall purchase 100% of the production of bio-diesel of BIOFUEL ADVANCED RESEARCH
AND ELOPMENT LLC. plant on the following terms:
| 1. | Eco will pay Friday of each week for the shipments made by Sunday of the previous week upon receipt of Invoice, Bill of Lading, Return Bill of Lading, and Certificate of Analysis. All paperwork for the previous week's shipments must be received by 12:00 noon Sunday |
| 2. | BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. is responsible for any and all of their local, state and federal tax liabilities. |
| 3. | Eco will provide scheduling and marketing for bio-diesel produced. |
| 4. | Eco will be responsible for receivables risk on bio-diesel. |
| 5. |
Eco
reserves the right to refuse business to anyone due to credit and market
risk
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| 6. |
BIOFUEL
ADVANCED RESEARCH AND DEVELOPMENT LLC. shall meet or exceed all
specifications for ASTM D6751-07a fuel bio-diesel and the EN 14214
specification as well as any changes in fuel bio-diesel industry standards
that might occur after the execution of this agreement. Proof of such
ASTM/EN compliance shall be provided by BIOFUEL ADVANCED RESEARCH AND
DEVELOPMENT LLC. to Eco in the form of a Certificate of Analysis for each
production lot prior to shipment. This Certificate of Analysis must be
approved b> Eco's Quality Control Manager prior to acceptance. With
regards to internal and external testing the producing plant will follow
the BQ 9000 quality standards. BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT
LLC. must have meters that measure both gross and net 60 degrees
Fahrenheit temperature corrected gallons. All loads must be temperature
corrected to 60 degrees Fahrenheit, in accordance with industry standards,
and comply with any changes to industry standards in the future
(including, but no! limited to, temperature correction. ASTM
specifications, etc).
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| 7. |
BIOFUEL
ADVANCED RESEARCH AND DEVELOPMENT LLC. will keep Eco informed on
production forecasts, as well as daily plant inventory
balances.
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| 8. |
On
all truck and rail shipments title and risk of loss of the bio-diesel will
pass at the loading flange between the plant and the truck or railcar.
Unless otherwise specified Eco is purchasing all bio-diesel on a FOB plant
basis.
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| 9. | BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. will provide a minimum of 14 days storage in separate tanks on the BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. site. |
| 10. | Eco shall deduct all unavoidable costs such as government 1 tariffs or assessment fees, sales taxes, import/export handling fees, assessments, inspection fees, or any other that has been approved by the appropriate member of the board of directors. |
| 11. | Eco shall be notified in writing and mutually agree on any feedstock changes prior to production. Acceptance of feedstock change shall not be unreasonably withheld by Eco. |
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EXHIBIT
B
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Eco
Transportation Services
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| 1. |
Eco
and BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. will mutually agree as
to the number of railcars needed and their respective lease rates. The
leases of such raiicars shall be responsibility of BIOFUEL ADVANCED
RESEARCH AND DEVELOPMENT LLC. and BIOFUEL ADVANCED RESEARCH AND
DEVELOPMENT LLC. will be responsible for securing the
railcars.
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| 2. |
Eco
will negotiate rail rates on behalf of BIOFUEL ADVANCED RESEARCH AND
DEVELOPMENT LLC.
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| 3. | All rail contracts will be in the name of BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC, or any BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. name change later chosen in the alternative. |
| 4. | BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC. will invoice Eco for rail freight along with a copy of the actual railroad invoice. (This amount will be paid the following Friday upon receipt of invoice.) |
| 5. |
Eco
will purchase all truck and railcar gallons on an FOB plant basis.
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| 6. | Eco will supply trucks and barges. |
| 7. |
Any
and all demurrage charges for lime in excess of one (1) hour per truck
will be the responsibility of BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT
LLC. Eco will submit an invoice to BIOFUEL ADVANCED RESEARCH
AND DEVELOPMENT LLC. for these amounts, to be deducted from the following
week's payment. If there is not a scheduled payment from Eco to BIOFUEL
ADVANCED RESEARCH AND DEVELOPMENT LLC, it will be the responsibility of
BIOFUEL ADVANCED RESEARCH AND DEVELOPMENT LLC to remit payment to Eco in
the form of an ACH (or other electronic funds transmission) within 10 days
of invoice for these charges.
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